Do You Have The Right To Self-Defense In Ohio? Part I: Using Deadly Force
By Columbus Criminal Defense Lawyer, James D. Owen
In Ohio, a person has a legal right to use force to defend himself, another person, his house, or even his property. The level of force that may be lawfully used varies, of course, depending on the circumstances of the case. A claim of self-defense is typically raised by a person accused of murder, attempted murder, felonious assault, aggravated assault, or assault. As a criminal defense lawyer, I have been truly suprised by the number of people I meet who do not believe that a person in Ohio has the right to self-defense. In fact, the defense of self-defense is firmly established in Ohio law. Of course, the use of deadly force to defend oneself requires greater justification than does the use of nondeadly force. In this blog post, I will discuss a person’s right to use deadly force when acting in self-defense.
The right to use deadly force in self-defense in Ohio can be traced back more than a century. In Marts v. State, 26 Ohio St. 162 (1875), for example, the Ohio Supreme Court held that the use of deadly force is justifiable when a person has a honest belief, and reasonable grounds to believe, even if mistaken, that he is in imminent danger of death or great bodily harm, and that his only means of escape will be by taking the life of his assailant. More than a century later, in State v. Melchior, 56 Ohio St. 2d 15 (1978), the Ohio Supreme Court established the elements of self-defense in a case where the accused actually used deadly force. There, the Ohio Supreme Court held that the accused who used deadly force must show: (1) that he was not at fault in creating the situation giving rise to the affray; (2) that he had a bona fide belief that he was in imminent danger of death or great bodily harm, and that his only means of escape from such danger was the use of such force; and (3) he did not violate any duty to retreat to avoid the danger.
With respect to the duty to retreat, there is no duty to retreat from one’s own home before resorting to lethal force in self-defense, even against a cohabitant with an equal right to be in the home. See State v. Thomas, 77 Ohio St. 3d 323 (1997).
In Ohio, the right of self-defense is an affirmative defense, meaning that the burden of proof rests on the accused to prove that he acted in self-defense when he inflicted the deadly force. However, effective with the passage of SB 184, in 2008, under what is known as the “Castle Doctrine,” if the lethal force was inflicted against a person in your home, temporary place of residence, or occupied car, you are now entitled to a presumption that you acted in self-defense. In this situation, the burden has now shifted to the prosecution to prove that you did not act in self-defense.
If you arecurrently under investigation for, or charged with, murder, attempted murder, felonious assault, aggravated assault, or assault, and acted in self-defense, you should promptly consult with an experienced Ohio Criminal Defense Attorney to discuss your legal right to act in self-defense in Ohio.